"Whenever the subject of rights is discussed, sooner or later
the Sainted US Supreme Court Judge Oliver Wendell Holmes' favorite
saying, 'Nobody has the right to shout 'fire' in a crowded theatre!' is
brought up and everybody's brain switch flips to the 'off' position."

As Mr. Odle states, this comment "is frequently used to shut off
discussion on why individual rights aren't being taken seriously" and
"is also used to justify anything that politicians want to do." How
true. Mr. Odle's other observations are equally valid. But discussion
on the "fire" statement goes deeper than that.

The "fire" comment was actually an example that Holmes used in a
freedom of speech case where the appellant, Schenck, had been convicted
under the Espionage Act of 1917. Schenck was distributing pamphlets
urging resistance to the draft, sometimes mailing them directly to
recent draftees.

In Schenck v. United States (1919), Holmes wrote, "The most
stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic."
[emphasis added]

I wholeheartedly agree, but for entirely different reasons than Holmes
implies in his equally well-known "clear and present danger" test.

Holmes supported his "fire" example by going on to announce an often
misquoted-and often misused-test. He wrote, "The question in every case
is whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree." [emphasis added]

The test asks the questions:

Is this speech so close to inciting action as to be regarded as
action, and

Is the action one that the State should prevent?

Schenck's conviction was upheld as the Court concluded that his speech
was tantamount to action that the State had prohibited, i.e., inciting
resistance to the government or promoting the cause of its enemies.
World War I was in progress at the time and, as we know, the exigencies
of war always seem to take precedence over freedom of speech, at least
in the view of the State and its reason-challenged adherents.

While Holmes's test is actually less restrictive and more friendly to
free speech than the "bad tendency" test it replaced, it remains a
tainted mechanism. Where Holmes made his error was in crafting the
phrase "substantive evils that Congress has a right to prevent."
Congress has no rights. It has powers. As Mr. Odle points out,
those powers are limited by individual rights.

So why would I agree with Holmes that falsely shouting fire in a
theatre would not be protected speech? In a word: rights. The
man who falsely shouts fire violates the property rights of
others.

The other theatre patrons have exchanged money (property) for the
rental of a seat (property) and the opportunity to have an entertaining
experience (property[*]). Their property rights are infringed by the
"fire" shouter as they leave the theatre, their entertainment
interrupted and their lives endangered.

The rights of the theatre owner are also infringed. He has promised the
use of his theatre (property) to the patrons in exchange for
compensation (property). He has also promised the viewing of a play, a
movie, or some type of entertaining event for which he has exchanged
property (rental or some other type of payment) and is now transferring
a partial right to the patrons. This is free-market economics at its
finest. There is a mutually agreed-upon exchange of property and all
parties benefit.

It is the right to property that is being violated and the "fire"
shouter has no right to engage in that particular speech because his
rights are limited by the equal rights of the theatre owner and the
patrons. As Thomas Jefferson wrote, "Of liberty I would say that, in
the whole plenitude of its extent, it is unobstructed action according
to our will. But rightful liberty is unobstructed action
according to our will within limits drawn around us by the equal
rights of others." [emphasis added]

Even Holmes was well aware of this principle when he also famously
said, "Your right to swing your fist stops at the other fellow's nose."

Justice Holmes's "clear and present danger" test does nothing to
protect the property rights of individuals but does much to advance the
power of the State. Holmes's test puts the whole issue in the context
of public safety and the police power of the State to protect it, not
in individual rights and the concurrent obligation of the State to
assist citizens in seeking restitution for violations of their property
rights. That is the failure of Holmes in this instance. He devised a
test that could have resulted in a landmark case for freedom and
didn't. Imagine if he had written instead:

The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create
a clear and present danger that they will infringe the equal rights of
others to enjoy their lives, their liberties, and their property. It
is a question of proximity and degree.

Such a rights-oriented focus in this test might well have stiffened the
spines of later justices faced with clear infringements of property by
the State itself.